Armstrong v. Randle

days, respectively, of the offer of settlement require acceptance

and farther to include agreement

an to reimburse the claimants for attorney’s company

reasonable ar- fees. The

gues only that since this involved com- cause issues, improper

mon-law contractual it was language describing statutory include set- obligations.

tlement

An is proper instruction if it finds

support any probative evidence value might be of some assistance to the answering questions submitted. Loui Ry.

siana & Arkansas Co. Blakely, (Tex.App. — Texarkana denied). We a trial deci review court’s particular

sion to submit a instruction under abuse discretion standard. given

court is therefore wide de latitude to propriety explanatory

termine the instruc

tions and definitions. Mobil Chem. Co.

Bell, No

abuse of discretion has been shown. judgment of the trial court is modified

only recovery to the extent that the of exem-

plary damages $500,000.00 reduced

$300,000.00; modified, the trial court’s

judgment is affirmed. ARMSTRONG, Appellant,

Brooks RANDLE,

Robert Edward Administrator

of the Estate Randle, of Beth Ann De

ceased, Randle, and Robert Edward

Guardian and Next Friend of Robert

Ryan Randle, Minor, Appellees.

No. 06-93-00021-CV. Texas, of Appeals

Court

Texarkana. May

Submitted 1994.

Decided June 1994.

Rehearing Aug. Denied Austin, Gutierrez, appellant. S. for

Ronald Ellis, Clark, Paris, for E. Ellis & Edward appellees. C.J., CORNELIUS, and BLEIL

Before GRANT, JJ. OPINION CORNELIUS, Chief Justice. wrongful This is a civil death action Armstrong causing Brooks of death Randle, Ann Beth the mother of Robert Ryan (Ryan Randle. Robert Edward Randle and Beth for- Randle’s father Ann Randle’s husband) mer filed the suit as administrator Ryan of Ann Beth Randle’s estate and as Armstrong Randle’s next friend. con- was murdering of Beth victed Randle and was prison. sentenced life His conviction subsequently by In affirmed this court.1 suit, court, this civil the trial based on a verdict, $491,700.00 awarded the ac- Randles $5,000,000.00 damages exemplary tual plus prejudgment damages, post-judg- ment interest.

In points first two error, he that im contends court properly application denied his corpus habeas ad first testificandum.2 He contends this denial violated the Texas open provision. Constitution’s courts open provision provides: courts open, every person “All courts shall be him, lands, injury goods, for an done in his person reputation, remedy by shall have provision due course of law.” The is one of our provisions the two due course law Constitution, being other due course writ, initially meaning ‘you body 1. The conviction was affirmed in Arm have the to testi- “The State, strong (Tex.App. 838 323 fy', bring up prisoner jail used detained in a —Texar 1992), judgment subsequently kana vacated in prison give evidence before the court.” State, (Tex.Crim. Armstrong 845 S.W.2d 909 1990). Dictionary 710 Law ed. (6th Black’s App.1993). again On remand the conviction was State, by affirmed this court. (Tex.App. pet. S.W.2d 230 — Texarkana granted). I, 28, 1994). (Apr. § Due common theme of these provision law of Article 19.3 law, may guarantees Legislature has that the as used Section course traditionally impede co-extensive the courts. been viewed as statute access to See Bd., due the United States Constitution’s Texas Ass’n Business v. Air Control with Mellinger v. process guarantee.4 of law Houston, 252- City S.W. Tex. Armstrong challenges In ease (1887); Touring, re Estate of judge, legis discretionary act of a trial (Tex.App.—Houston [14th open provision enactment. The lative writ); 1989, no Indem. Dist.] Massachusetts inapplicable is therefore to this issue. See Ins., 685 & Ins. Co. v. Texas State Bd. of Life Luce, 823, Hughes v. 868 S.W.2d Peeler & 104, 1985, (Tex.App.—Austin S.W.2d 113-14 1993, requested). (Tex.App.—Dallas 834 writ writ). no if, argument, purposes Even for the we open provision is not co courts open applies provision assume that the courts provi with the due course of law extensive issue, analysis complicated by to this our is Krusen, 918, 678 921 sion. Nelson v. S.W.2d analysis the ease law under the fact that (Tex.1984). Although provisions guar both open provision, courts which we would nor process, open provision, the antee due courts guidance, helpful mally review for is be Const, I, 13, § a sub art. establishes Tex. applied invariably it and the deal cause tests Const, right, independent of Tex. art. stantial will, statutory with restrictions.5 We howev I, provisions. § 19 and other constitutional er, authority to address use provision includes at least three Id. The open complaint. courts guarantees: separate constitutional party access to actually operating, may avail A not be denied courts must be able; merely is impede ac the he an inmate. Legislature the cannot courts because Palmer, 523, 104 517, fi 468 through to unreasonable See Hudson v. U.S. cess the courts (1984). 3194, 393, 3198, barriers, 82 401 meaningful S.Ct. L.Ed.2d nancial remedies however, is, may right no for an Legislature the There absolute must be afforded and a right appear to in court in civil ease.6 abrogate the to assert a well-estab inmate 687, Dempsey, 821 689 law of action unless the See Pruske v. S.W.2d lished common cause writ); 1991, outweighs litigants’ (Tex.App.—San no its the Antonio reason for action (Tex. Martin, 621, Trinity v. 623 right of redress. Riv Nichols 776 S.W.2d constitutional Consultants, Inc.-Texas, 1989, orig. proceeding); App.—Tyler 37 Birdo er Auth. URS Holbrook, 411, (Tex.App.— 742, 743, 414 Tex.Sup.Ct.J. 1994 152324 v. 775 S.W.2d WL I, guidance. § with For further 19 reads: “No citizen of additional 3. art. Const, Tex. life, deprived prop- possible implications of liberty, this State shall be discussion of court’s, immunities, decision, erty, privileges any Comyn’s supreme dissent, Justice or manner see disfranchised, except by the due course of the 872 S.W.2d at 202. law of the land.” supreme on a number of 5. The court has held court, however, just recently supreme has 4. open to an courts viola- occasions that establish guarantee due course of law "[0]ur stated: Texas First, litigant satisfy two-part a test: a roust tion independent vitality, separate and dis- ... has cogniza- litigant it be that the has must shown process Four- tinct from the due clause being law cause of action that ble common to the U.S. Constitution.” In teenth Amendment Second, litigant must show that restricted. J.W.T., 189, (1994). re 872 197 The court S.W.2d arbitrary is. when the restriction unreasonable language also of “the Texas due course noted against purpose and basis of the balanced from, provision is different constitutional arguably significantly Consultants, Trinity Auth. v. URS statute. River than, language broader 28, Inc.-Texas, 742, (Apr. Tex.Sup.Ct.J. 743 37 corresponding provisions.” Id. of the federal at Inc., 1994); Sterling Drug, Moreno with the issue of wheth- 197 n. 23. J.W.T. deals Votteler, 348, (Tex.1990); 648 S.W.2d Sax er, due Constitution's course of under Texas provision, biological may father be denied law paternity opportunity to establish his an Annotation, Zitter, Jay State Prisoner’s Presumably, interpreta- M. parental rights. claim Personally Appear to Which Right at Civil Trial provision in other to due course of law tion of the Cases, Party-State 82 A.L.R.4th traditionally applied He Court to Is areas will continue be (1990), provide cited therein. cases chooses to the lower until the court denied); Dempsey, Fort Pruske v. 821 S.W.2d Worth Brewer counsel. noted that the at 689. The court Pruske Taylor, (Tex.App.— 423-24 action, that inmate was a defendant in the he writ); Doyle Doyle, Dallas no made it that he had clear well advance (Tex.Civ.App. — Beaumont plaintiff’s denied the claims and wished 1972), denied, 855, 93 cert. 409 U.S. S.Ct. appointed attorney rep- have an or to either (1972). considering L.Ed.2d himself, and that the trial court’s deni- resent right generally appear, inmate’s the courts post-answer in a requests al of his resulted balancing approach weighing follow a — reasons, judgment. on default Based these system’s in preservation of the correctional post-an- the court the trial court’s reversed access, right tegrity prisoner’s that, judgment swer default with the order achieving goal with a a balance that remand, trial court review Stone fundamentally Taylor, 737 fair. Brewer v. apply balancing test deter- factors 423-24. Review of trial court deci appear. if mine the inmate entitled to has sions on issue been under an abuse Only standard. See at 424. discretion id. an inmate has effec where been case, tively presenting barred from such There is a clear distinction between Nichols, pro in as in Pruske or wherein se judicial right system the of to the access and right in appear inmate was refused the to right personally to appear. the If inmate the court, willing appeals has an court been to adequate and his oppor counsel are afforded error in denial an find the of inmate’s re tunity confidentially petition to confer to and quest personally appear. to The Dallas controversy, the courts about the matters in Brewer, holding court’s in which out sets the right the inmate’s is access satisfied. above, balancing ap test and factors noted Morris, (7th Stone v. 546 F.2d Cir. pears by to be the model followed the other 1976), approval Tay cited with in Brewer v. appeals in Texas courts of recent decisions. lor, Stone, 737 S.W.2d at 423. In the court Armstrong relies on several ad cases listed a number of factors that be should dressing general right litigant the of a to balancing in rights considered the inmate’s here, however, appear in court. issue is integrity sys the of the correctional right appear personally the of an inmate to (1) They tem. include: the cost inconve that, Armstrong argues at a civil trial. be court; transporting nience of the inmate to suit, cause he did not initiate this civil he (2) security danger the risk and to the court personally be to appear, should allowed not public by allowing the the inmate to ing reported in that most the cases the court; (3) attend whether the inmate’s claims prisoner plaintiff. Although was the whether (4) substantial; are whether a determination an inmate in an plaintiff is a or a defendant reasonably of the matter can delayed be until certainly a action is factor the courts to (5) released; the is inmate in whether the consider,7 dispositive not we do find it this admissible, mate can and will offer noneumu- In issue. those cases in which the testimony lative that cannot be offered effec right an found error in the denial of inmate’s tively by deposition, otherwise; telephone, or appear, ruling personally to the was presence whether the inmate’s impor is solely the based on fact that the inmate was judging credibility tant in his demeanor and defendant, but was based on additional compared witnesses; with that of other reasons, viz., lawyer, the inmate had no was jury; whether the trial to or the court to a se, proceeding right pro or denied to was probability the inmate’s success which lawyer, communicate with his all of Morris, at merits. Stone F.2d effectively his to barred access the courts. 735-36, approval cited with Pruske Dempsey, Pruske v. 688- 821 S.W.2d at Dempsey, 89; Broome, at S.W.2d and Brewer Co. America v. National Ins. Taylor, key 423. But (Tex.Civ.App —Ty 864-65 . represented factor whether the inmate is ler note, (Tex.App. The Dallas court in Brewer careful was to S.W.2d writ) no — Dallas right prisoner appear "a has no to in a added). civil case (emphasis Taylor, he has initiated....." Brewer n.r.e.). County The fact that an to courtroom in Lamar would ref'd obviously and incon- inmate initiates the action does not necessari have entailed some cost Taylor, ly appearance person, his Brewer v. preclude venience. See could, untimely filing again being whether his access to the at 424. issue therefore, by effectively reasonably courts is barred. See Nichols have been viewed Martin, delay simply an at 622-23. trial court as effort the trial. case, repre Armstrong timely Armstrong applica did not file his by very beginning from sented counsel tion; testimony he does not show what his transcript action. record at been, it would how have affected have would presented show his counsel active trial, why it could outcome of the aggressive and at defense both before deposition, presented been at trial have trial. affidavit, otherwise; telephone, he was argues only that he was the represented by counsel and does not show plaintiffs’ witness who could contest presentation his affected defense was intentionally claims that he killed Randle and absence; effectively by his and he was not incarceration, that, because his he was to the courts or from barred access ability denied communicate with facts, defending the lawsuit. those Given presenting his counsel in his defense. assist its trial court did not abuse discretion show, however, He fails to the substance of denying application. Armstrong has any testimony given, he have or how would clearly failed show that the court acted testimony jiffy’s such would have affected the guiding princi regard without- rules and why not show such testi- verdict. He does unreasonably. ples arbitrarily and or acted mony given by deposi- not could have been Inc., Aquamarine Operators, 701 Downer tion, affidavit, otherwise, telephone, see denied, 238, (Tex.1985), 241-42 cert. S.W.2d Taylor, at 424. He Brewer 2279, 1159, 106 S.Ct. 90 L.Ed.2d 721 U.S. also has not shown that he was denied an (1986). opportunity to communicate with his attor- ney. Armstrong contends that the also Armstrong application did not his for denial of writ the due course of file the violated Const, trial, § day provision civil law of Tex. art. 19 and I, the writ until the first the 22, 1992, attorneys although process his the of U.S. Const. June filed due clauses answers, trial, however, motions, Arm interrogatories, V At various amends. and XIV. requests during period strong provisions raise these and the nine-month did not original grounds complaint. his In his complaint and the trial for written between the deny application Armstrong argued that to obviously opportunity and had the to file present trial opportunity well in the him the to be at application such an advance of Armstrong and aware would violate tire Texas constitutional trial. his counsel were statutory against outlawry,8 and provisions of the and had sufficient advance lawsuit Indeed, orally argued in the trial court he that a notice of the date of the trial. before Armstrong’s application, open provi courts response oppos- denial would violate the objection ing argued complaints. He thus counsel without that the sion. waived these arguments parties are waived at setting had been known to the Even constitutional According appellate if the applica- to the level issue or issues were several weeks. Tex.R.App.P. tion, was, Armstrong applica- the trial court. the time before Schautteet, 52(a); filed, City in San Antonio tion was incarcerated the Walls Unit (Tex.1986). if Even County. Transport- of Huntsville Walker waived, Armstrong’s open discussion of ing Armstrong place confinement argument appeal by points of in the Armstrong error does not on brief asserted Because argue statutory provi County appeals the constitutional are waived. Bend courts Fort I, 20; outlawry, § Sbrusch, sions art. Const, Drainage Dist. v. 818 S.W.2d Tex. Tex. (Vernon 1977), art. this 1.18 Code Crim.Proc.Ann. (Tex. 1991). preserved. argument of error not is not Grounds argument dispose Recently, would of these com- 616 at 909-10. court well, plaints as exemplary damages because the above discussion affirmed an award of actually process grounds. based due exemplary on damages where the ratio of damages actual was 28.6 to 1. Twin Davis v. error, point Armstrong his third con- Co., (Tex. City Fire Ins. 865 S.W.2d exemplary tends damages that awarded App. requested). — Texarkana jury are excessive and violate his right process to due under both United We find the evidence sufficient to Specifically, States and Texas Constitutions. damages. support exemplary amount of argues he that exemplary because the dam- intentionally Armstrong that found ages compen- were excess of ten times the testimony killed Beth Ann Randle. satory damages, the award is the result of Armstrong showed that Randle and lived had jury passion or bias. together; stormy relationship that their violent; on day at times that of the grossly An award of excessive drinking murder had heavi been may damages violate defendant’s substan ly; tendency that he had a to be when violent process rights. tive due TXO Production Randle; drinking; he shooting admitted Corp. Alliance Corp., Resources 509 U.S. twice, and that shot ---, he Randle first in the 2711, 2717-2719, 113 S.Ct. chest from in front and second while she was (plurality opin L.Ed.2d 376-77 floor, ion). lying on the back of head. Exemplary damages must be reason ably proportioned damages, to actual but testimony The defense offered disputing no there is set ratio between amount testimony of the wit- several State’s exemplary damages actual and that will be Armstrong’s propensity nesses about vio- considered reasonable. Alamo Bank Nat’l problems lence and his with alcohol. The Kraus, Rea testimony defense also offered Arm- about is a depends sonableness determination that strong’s claim that Randle had shoot tried to facts of each case. Id. Factors be most, him gun gone and the had off. At in determining considered whether award however, conflicting the evidence is is reasonable include the nature of the clearly legally factually sup- sufficient to wrong, the character of the conduct in Moore, port jury’s Pope award. volved, degree culpability of of the S.W.2d at 624. wrongdoer, the situation and sensibilities $491,750.00 damages The actual of were concerned, parties of the and the extent pain based on Beth Ann Randle’s and suffer- to which such public conduct offends a sense familial) ing, (pecuniary the loss and suffered justice propriety. of determining Id. Randle, by Ryan anguish and the mental damages excessive, whether are the trial by Ryan suffered Randle. does appeals courts and courts employ of should not damages. contest actual award of any the same test insufficiency as for factual punitive damages pro- Moore, reasonably are question. Pope portional damages. to the actual Given presented evidence and the char- nature and Armstrong argues that mere fact degree wrong, acter of culpability, of exemplary damages— that the award of Randle, relationship Ryan between $5,000,000.00 in of excess ten times that —is profoundly the extent which murder of of damages enough the award actual public justice, offends a sense of the amount that indicate award result was the of exemplary damages of awarded is not unrea- noted, however, passion or bias. As there is Kraus, sonable. Nat’l Alamo Bank Indeed, no set for ratio what is excessive. in S.W.2d at 910. Bank, Alamo Nat’l the landmark decision judgment of the trial court is affirmed. establishing reviewing the current rules for exemplary damages, separate exemplary Justice, BLEIL, concurring. damage awards each defendant were twenty wholly almost times the amount the actual I in of concur the court’s decision and Kraus, damages. opinion, separately emphasize Alamo Nat’l Bank but write modern-day that are several rules there it Arm- require-this outcome. And

which KHAN Nasir Ali attorney his of Tex- strong or State —not prevented Armstrong as claimed—who as in appearing from court. of Texas. The STATE case pretrial A conference was held No. 01-93-00886-CR. the Texas Rules of pursuant to Rule Texas, Appeals Court At his at- Procedure. that conference Civil Dist.). (1st Houston torney presence seek did not the trial. 30, 1994. June request corpus His ad for writ habeas Houston, Sandoval, appellant. T. Mark day of trial was testificandum filed on Holmes, Jr., Keel, Mary Lou John B. Bet- untimely and been denied on that could have Richardson, Harris, appellee. tina Furthermore, request his was tanta- basis. In addi- mount to a motion for continuance. MIRfiBAL, Before WILSON being untimely, it tion to was unsworn DUGGAN, JJ. why Armstrong’s presence stated no basis Rules 251 the Texas needed. OPINION Procedure, governing Rules motions of Civil on the absence for continuance based DUGGAN, Justice.

witness, in' of an require support the form charged by with Appellant was information testimony would showing affidavit what judge pled guilty; the trial assault. He Armstrong made no materiality. its be and punish- guilty found him and assessed his Additionally, Armstrong showing. has such jail, for two year probated at one ment preserved any complaint appeal be- years. Appellant gave timely, written notice testimony cause he has not shown what appeal. as he been called would have been had error, points appellant contends In two Tex.R.App.P. 52(a). witness. nonju- proceeding to a that the court eired If that the trial court we were to hold securing ry a written waiver of trial without circumstances, present we erred under the by jury appellant required litigants saying civil would be that neither of Criminal article 1.13 of the Texas Code incarcerated nor their happen who to be (Vernon Supp.1994). The State Procedure (no qualified) attorneys matter how well are requests ap- agrees appellant, and with procedural rules of required to follow the points of be sustained. pellant’s error Texas. Although and the State both appellant by jury, right to a trial orally waived the Justice,

GRANT, concurring. jury no written waiver. record contains appellant a judgment waived recites only. I concur in the result jury writing jury, not that he waived but Pursuant consent of State. with the order, on March this Court’s hearing to determine trial court conducted executed. Af- waiver was whether written hearing testimony from the ter clerk court, judge that no the trial found filed. written waiver was 1, 1991, 1.13 art. re- September Effective waiver, approved quires a written eases, State, in all both misdemeanor Carr, Curry v. felony. ex rel. State

Case Details

Case Name: Armstrong v. Randle

Court Name: Court of Appeals of Texas

Date Published: Jun 28, 1994

Citation: 881 S.W.2d 53

Docket Number: 06-93-00021-CV

Court Abbreviation: Tex. App.